'Mischief' in Gay Rights Precedent, Dissent Warns

Okay guys, I'm honestly a bit lost on the full meaning of this. Now I present it both for the importance of a serious decision coming out of the 9th Circuit Court of Appeals (which covers multiple states for direct jurisdiction and is no slouch in precedent looked at outside those), and for a discussion in just how serious it may be for what seems to be a major concern over unintended or over-reaching impact.

(CN) - "Far reaching" and "mischievous" consequences for the gay-marriage debate will arise after the 9th Circuit let stand a ruling that found it discriminatory to pass over potential jurors based on their sexual orientation, a dissent Tuesday warns.

The wording is quoted, as shown and those familiar with the Courthouse News site as a source/reference know they don't sit partisan to either side that may really be noticed. They simply report what crosses the nations courts and dockets for cases as well as outcomes.

This is the reasoning and basis of the decision being talked about here:

Applying an expansive reading of the Supreme Court's landmark ruling against the Defense of Marriage Act, U.S. vs. Windsor, the appellate panel found that judges must apply "heightened scrutiny" to any peremptory strike of a gay juror.

"Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose," Judge Stephen Reinhardt wrote for the unanimous panel.

...here is the dissent written:

"The opinion's unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation," O'Scannlain wrote in the nine-page dissent. "Indeed, today's opinion is the only appellate decision since United States v. Windsor, to hold that lower courts are 'required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.' Such holding is wrong, egregiously so. Because of the danger that district courts will be misled by the opinion's sweeping misinterpretation of Windsor, it is most unfortunate that we denied rehearing en banc."

Source

I know when the nuances and subtle issues across something may really define some of it, and in this topic? It's just not my focus to have a feel for that aspect. I'm hoping some others here may, to better put the fears in perspective here?

I don't see why there should be an issue pre-emptively challenging based on the perception of gay ..IF that is a part of either counsel's pre-determined number of challenges allowed without cause. They don't need to say it, and if folks think there aren't VERY sketchy reasons Jurors get bounced now, they likely just don't know a lot about how this works.

However...This goes beyond that, by how I'm reading it and seems to say a preemptive challenge without cause where someone might be gay (umm.. problem 1 ..isn't it? perception by whom to call it out?) demands a higher level of scrutiny?

I may be missing a lot here, and I'm wide open to that. It's part of why I bring this one for a look-see.

It sounds really interesting and is a topic I'm interested in, but reading it twice just made my brain hurt. Have I got this right?

The 9th circuit said it's discriminatory to pass over a gay person for jury duty because they're suspected to be gay. The dissent claims that will cause problems (far-reaching and mischievous) for gay marriage debates and court cases.

In other words, the dissent is saying people should be permitted to dismiss someone who is suspected to be gay, specifically if it's a case that involves gay rights.

If I've got it right, that's like saying it's OK to dismiss a person because they're black if the plaintiff or defendant is black.

I don't feel confident at all that I understand it.

a reply to: Benevolent Heretic
I think you are correct in your understanding.

There is already a heightened sense of scrutiny involved when it appears jurors are being selected (or not), with regard to race. For instance, if one side is trying to stack a certain race to gain sympathy. This is no different, so I don't see why it is controversial . . . except for those that are on the side of trying to exclude gay jurors in "gay rights" cases. However, it can be also said to work in reverse if one side is targeting a mostly gay composition.

If you think back to the OJ trial . . . Pre-trial the African-American community was making noise because the jurisdiction that it should have been filed in, Santa Monica, was a predominantly caucasian area. The argument was that they were trying to railroad OJ. So, the prosecution filed in L.A. County to avoid being labeled "racist". This backfired on them during the selection process and the jury consisted of 11 minorities and 1 caucasian. Pre-trial polling clearly showed most minorities believed that OJ was innocent, while most caucasians thought he was guilty.

The racial composition of the jury was strongly influenced by the decision of the prosecution to file the Simpson case in downtown Los Angeles rather than--as is usually the case-- in the judicial district where the crime occurred-- in this case, Santa Monica. Had the case be filed in Santa Monica, the Simpson jury would have been mostly white instead of, as was the case, mostly African-American. With poll data showing that most whites believed Simpson to be guilty and most blacks believing him to be not guilty, the decision to file the case in Santa Monica may have been the biggest mistake the prosecution made. Vincent Bugliosi, the celebrated prosecutor in the Charles Manson case, said the mistake "dwarfed anything the defense did."

OJ jury selection

I'm having a VERY tired autoimmune & injury recovery day today, so maybe I'm too foggy to follow ... but could someone explain to me how "mischievous consequences" enters into discussions about things being legal/illegal? That smacks of subjective reasoning to me .... (or did I miss something?)

a reply to: Wrabbit2000

It's referring to a Batson Challenge which hasn't been applied to sexual orientation successfully prior I believe. During Voir Dire a potential juror had a conversation with the judge where it was revealed the person had a same sex partner. The juror was then challenged, and a Batson challenge was levelled later.

Normally US lawyers are very aware of the whole procedure, so they tend to avoid making inference that a jury challenge is anything related to race or gender. In this case, I believe this was untested with sexual orientation and a number of inferences were made from the court transcript allowing a Batson challenge to be successful. In previous instances the challenge was never substantiated.

There have been a number of cases where this has come up already, and most of the time it's easy for the challenge to be substantiated by something other than sexual orientation (or gender and race for that matter). When Batson was first introduced persons freaked out, then they realised there are like a billion reasons to challenge a juror so most of the time this type of challenge doesn't do muchly it seems.

Hope this is somewhat edumacational. Have fun.

originally posted by: FlyersFan
I'm having a VERY tired autoimmune & injury recovery day today, so maybe I'm too foggy to follow ... but could someone explain to me how "mischievous consequences" enters into discussions about things being legal/illegal? That smacks of subjective reasoning to me .... (or did I miss something?)

Let's say the plaintiff is LGBT and during selection, while not able to ask directly, the claimant side is trying to find as many jurors sympathetic to the LGBT side. This is perfectly legal. The defense is not able to ask for certain jurors to be dismissed solely because they are LGBT and might be sympathetic, thus hurting the defendant's chances.

So, the commentary about being mischievous is referring to the ability of the claimant to seek the sympathy vote, but that the defense cannot do the same if their sole reason for dismissal is that the jury is a member of the LGBT community. However, as pointed out this is the way the system is already run in regard to gender and race, so I'm not sure why this would be any different. Unless, of course, you are on the side of denying LGBT individuals the same rights (say marriage) as non-LGBT individuals.

Or something like that . . .

a reply to: solomons path

Thanks for clearing that up. I was totally lost. Still sad to see prejudice or counter-prejudice always play a role in stuff. Its just old imo

Wrabbit,

I think the issue is better explained in the link at the bottom of your source. The dissent believes that this should have been covered under something they refer to as "rational basis" rather than "heightened scrutiny".

They believe that by applying "heightened scrutiny" to this case, rather than "rational basis", the court has over reached and effectively "settled" the gay marriage question.

EDIT So it doesn't seem like the dissent is questioning whether or not a juror can be challenged based on his sexual orientation, but rather that the wrong basis for preventing that was applied.

a reply to: imwilliam

I think part of why I'm still a bit puzzled is what heightened scrutiny is supposed to actually look like or be taken to translate to in real court rooms for how jury selection sees anything different vs. what's happened up to this point.

Jury Selection is something I'm particularly interested to follow changes with from years of seeing it closely through a family member, and for them more than me, I'll leave it at that but to say it's a critical part of our system IMO. It's where many trials are fought and won/lost far more meaningfully than it's given credit for, anyway.

I always perk up on decisions that are broad but kinda vague like this seems to be in some ways.

a reply to: Wrabbit2000

Yeah, I don't think the dissent is concerned about this as it relates to jury selection. They seemed to feel that this was already covered on other basis/cases/precedent. It's the application of "heightened scrutiny" from the Windsor case and that they see this as somehow "settling" the gay marriage issue ahead of the Supreme Court and contrary to what other appellate courts have decided.


EDIT: Maybe better worded "they see this as somehow pretending that the gay marriage issue is already settled"

a reply to: Wrabbit2000

This is a dangerous precedent. They are basically saying that peremptory strikes won't be allowed if the person "might be gay", when they are typically allowed for no stated reason, in our courts. This pretty much says that homosexual jury candidates get special treatment, over all the rest. seems like they want to stack the deck to me, and yet again offer something well beyond equal rights. S&F.

originally posted by: FlyersFan
I'm having a VERY tired autoimmune & injury recovery day today, so maybe I'm too foggy to follow ... but could someone explain to me how "mischievous consequences" enters into discussions about things being legal/illegal? That smacks of subjective reasoning to me .... (or did I miss something?)

You didn't miss anything. Vague and subjective rulings are done intentionally, so they can later be "refined" to support whatever agenda is being pushed in the case.

originally posted by: LadyGreenEyes
a reply to: Wrabbit2000
This is a dangerous precedent. They are basically saying that peremptory strikes won't be allowed if the person "might be gay", when they are typically allowed for no stated reason, in our courts. This pretty much says that homosexual jury candidates get special treatment, over all the rest.

Hiya LGE

Unless I'm mistaken it would have to be brought up during voir dire from jury questioning, or legal marital status, and it would have to be substantiated by an inference. Is a bit harder to do since it's not visible like gender and race.

Inferences aren't as flimsy as they first seem. The challenge would have to demonstrate that:

A: The juror was thought to be of a certain sexual orientation
B: The juror was challenged on the basis of their orientation
C: The challenging attorney is being insincere on their justification of the challenge

To quote a law review article on the Batson Challenge:

The current framework makes it exceedingly difficult for judges to reject even the most spurious of peremptory
strikes—a reality that is not lost on trial attorneys.

Source

This isn't to say that Batson couldn't ever become a problem, but there are cases such as Commonwealth vs. Cook where Batson Challenges failed during a case where over 70% of challenges were aimed at black people and the attorney was quoted as saying the following in a later made training video:

When you do have a black juror, you question them at length. And on this little sheet that you have, mark something down that you can articulate later if something happens . . . and question them and say, “Well the woman had a kid about the same age as the defendant and I thought she’d be sympathetic to him,” or “She’s unemployed and I just don’t like unemployed people.” . . .

. Source

Is also some information here that's pretty useful.

From a God forsaken Euro's perspective the US should consider following the UK and get rid of this challenge altogether. It would still allow strike with cause, which is removing a juror for a specified reason, but removes this particular issue from coming up.

You get your jury, it's chosen at random, and there is only one type of challenge. It makes the whole thing less like a game.

a reply to: Pinke

Well, it's pretty vague, which is always a concern for me. Any vague decision is open to far too much manipulation down the line.

I actually like the idea of peremptory strikes; sometimes, a thing really IS a factor in a case, even if it should not be. Race can be, if a juror is the same, and seems to have a mindset that all accusations against their race are 'wrong". Some people are like that. Of all colors. The attorneys and jury people might know this, but legally not be able to use it, even though it's clear bias, without those strikes. Overall, in random jury pools, it shouldn't be an issue.

In this case, stating that you can't use such a strike against someone based on their perceived sexual preferences is ridiculous.

I do understand your point about the "game" aspect of it, and it can be that way. I just don't like the idea of singling out any specific thing, and stating that peremptory strikes are good, unless you fall into this special little group. It's that which bothers me here. Whatever method is used, it needs to be even for all.

I guess the main reason I like these strikes being available is that many people aren't capable of being unbiased, and it gives each side a better change of avoiding obvious idiots in a jury. If all thought as I do, I wouldn't mind doing away with the rule, but they don't.