Sex bias on juries outlawed

April 20, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- In a sweeping new declaration of sex equality that was mainly a gain for women's rights, the Supreme Court ruled 6-3 yesterday that it is unconstitutional for prosecutors to use individuals' sex as the reason for denying them a seat on a jury.

The ruling, the first by the court in a dozen years on women's rights under the Constitution, said that selecting jurors on the basis of their sex is a form of discrimination that "serves to ratify and perpetuate . . . archaic and overbroad stereotypes about the relative abilities of men and women."

The decision creates a nationwide constitutional rule that matches one issued for Maryland last year by the state Court of Appeals, barring the exclusion of women from juries in Maryland because of their sex. The Maryland ruling came under the state's own constitution, the Declaration of Rights.

Although the new case offered the Supreme Court a chance to add greater constitutional protection for women's rights, the court said it did not need to do that to decide the jury issue. It said that could be settled on the basis of the existing standard, which outlaws many forms of intentional bias against women, but not all. Women are assured of the same treatment as men when they vote, for example, but are not equal in the kinds of military service they can do.

The new decision extends to the sexes the same jury-service equality given previously to all races. The use of race as a reason to exclude jurors from a trial jury has been forbidden under the Constitution since a 1986 ruling by the court. The new decision puts sex bias on a national constitutional par.

Women long were barred from service on juries. After they won the right to be jurors, in a 1975 decision that Justice Ruth Bader Ginsburg had helped win as a women's rights lawyer, women continued to be excluded from cases because their sex was thought to be an unwelcome factor, by one side or the other.

Male jurors have sometimes been vetoed for a jury because of their sex, but that is not believed to be as common.

Justice Ginsburg joined in yesterday's majority ruling -- the first time she has voted as a justice on an issue of women's constitutional rights. The ruling was written by the court's senior member, Justice Harry A. Blackmun, who is to retire in the fall.

Barred without reason

At issue in both the 1986 ruling on race and yesterday's on sex were prosecutors' use of automatic "strikes" -- or "peremptory challenges" -- in selecting juries. These are strikes that can be made without reciting a reason.

Now, in the wake of the court's series of decisions, if a prosecutor appears to be keeping all women, all men, or all individuals of a race from serving on a jury, that strategy can be challenged as unconstitutional bias.

Strikes based solely on a juror's sex or race often have been

made as the lawyers sought to shape a jury more sympathetic to their side. For example, in the case the court decided yesterday, involving an Alabama woman's claim that a particular man was the father of her child, each side tried to keep jurors of one sex from being seated. Men were challenged by prosecutors who hoped to get more women who might be sympathetic to the woman's claim. Women were challenged by defense lawyers for the man.

The jury wound up with only women as members, and it found that the man was the father.

Although the court's new ruling gives men as well as women equality as potential jurors, the outcome was justified mainly with rhetoric about the nation's long-running tradition against women juries.

Justice Blackmun wrote: "In this country, supporters of the exclusion of women tended to couch their objections in terms of the ostensible need to protect women from the ugliness and depravity of trials. Women were thought to be too fragile and virginal to withstand the polluted courtroom atmosphere."

The ruling was Justice Blackmun's first since he announced this month that he would retire after this term. It could be one of the last major constitutional rulings by the author of Roe vs. Wade, the 1973 ruling that established a woman's constitutional right to seek an abortion.

Although the majority decision had the full support of six justices, one of them -- Justice Sandra Day O'Connor -- said she was going along with it only so far as it barred prosecutors from excluding jurors based on their sex. The Supreme Court has ruled that race-based challenges are unconstitutional across the board -- by either side in a criminal or a civil trial. The Blackmun rTC opinion on sex equality was written broadly enough that it could go that far, too, regarding juror strikes based on sex, but that was not explicitly settled.

Women's groups praise

The ruling won praise from women's rights groups. Marcia Greenberger, co-president of the National Women's Law Center, said the ruling "set an important precedent for advancing women's legal right . . . by recognizing the shared history of discrimination faced by women and racial minorities in this country."

Chief Justice William H. Rehnquist dissented in a short opinion, and he joined Justices Antonin Scalia and Clarence Thomas in a longer, often sarcastic dissent written by Justice Scalia.

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