Justices agree to decide legality of one-sex juries Court lets stand ruling on Bibles

May 18, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court, promising a major new decision on sex bias, agreed yesterday to rule on the constitutionality of lawyers' efforts to keep all men or all women off juries in court trials.

In a separate case, the court blocked efforts by a school board in a rural Indiana town to assure that elementary school students could get free Gideon Bibles at school. A lower federal court struck down that practice, which had lasted for more than 30 years.

The court's action on the jury issue will settle a constitutional dispute among the lower courts about the use of potential jurors' sex as a basis for barring them from a jury.

Just as lawyers for generations tried to shape the racial makeup of juries until the Supreme Court ruled it unconstitutional in a series of decisions starting in 1986, attorneys long have attempted to control the sex makeup of juries on the theory that that might help their client.

In the case the court will be reviewing, for example, state lawyers in Alabama tried to keep all men from acting as jurors to decide a paternity case against a man, while the man's own lawyers tried to keep all the women off the jury panel.

The case wound up with 12 women and no men on the jury. The jury ruled that the man was the father of a child, as the child's mother had claimed in the lawsuit.

In Maryland, under its Constitution, it is now illegal for lawyers to exclude jurors from serving solely because of their sex. That ban emerged just last month, in a 4-3 decision by the Maryland Court of Appeals in a Prince George's County murder case.

Elsewhere, courts have split on the issue.

In the new jury case, the Supreme Court will be deciding the issue under the U.S. Constitution, and thus its final decision -- due about a year from now -- will settle the issue for federal suits in other states.

Even if the court were to allow sex as a key factor in jury selection, states still would be free to ban it under their own laws or constitutions, as Maryland's highest court did.

The most effective way for lawyers to control who sits on a jury in a criminal or civil case is to use automatic challenges or "strikes" against potential jurors. Those strikes, technically called "peremptory challenges," permit a lawyer to bar an individual without giving any reason for doing so; such challenges are not second-guessed by the judge.

But the Supreme Court has ruled that when a lawyer appears to be using such challenges to keep jurors from serving solely because of their race that can amount to unconstitutional race discrimination. In the new case, the court is being asked to decide whether it is a form of unconstitutional sex bias to exclude jurors of one gender solely for that reason.

The court will hold a hearing on the issue next fall and decide the dispute sometime next year.

Women's rights groups have strongly supported efforts to end sex-based juror selection. In Maryland, when the issue was under study by the Court of Appeals, those groups urged the state tribunal to strike down the practice under both the U.S. Constitution and the state Constitution.

For many decades, women were not allowed to serve on juries in U.S. courts. Three states continued to follow that practice as recently as 1962: Alabama, Mississippi and South Carolina. The last of those laws was repealed in 1968. Women have been assured a right to sit on federal juries only since 1957.

In another significant order yesterday, the court voted to leave intact a federal appeals court ruling that it is unconstitutional for public school officials to let the Gideons hand out free Bibles to elementary pupils during school hours.

That decision came in a test case involving schools in Rensselaer, Ind., where the Gideons had provided Bibles each year to all fifth graders in the public schools.

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