Like race, gender matters

May 03, 1994

On the same day the Supreme Court ruled that the Constitution prohibits excluding women or men from juries because of their sex, the U.S. Senate was giving a demonstration that sometimes men and women see things quite differently. All seven women senators voted against letting Adm. Frank Kelso retire with four-star rank. Men senators were divided. In one sense this justifies those dissenters from the Supreme Court ruling, who argued that a person's sex has been demonstrated to be predictive in some jury trials and that therefore courtroom lawyers should be allowed to use the

"peremptory challenge" -- one without cause -- to exclude as many men or as many women as possible.

In fact, however, the Senate vote is a good example of how wrong it would be to allow important public decisions to be made with all members of one sex excluded. If only men had been allowed to deliberate and vote on Admiral Kelso's retirement, the appearance of discrimination would have been blatant. And not only the appearance. A jury is supposed to represent the community whose well-being a trial is supposed to protect. If women and men do have different views of certain crimes (and some studies show they do, for instance in child custody, wife-beating and rape), then to exclude all persons of either sex from a jury clearly reduces the likelihood that both (or all) of a community's set of values will be represented. If, as Justice Sandra Day O'Connor says (and as we believe) in her concurring opinion in this case, "that like race, sex matters" when jurors deliberate, that is an argument for diverse juries, in the best interest of justice.

The peremptory challenge is a traditional, even ancient part of the legal machinery meant to produce impartial juries. It surely does that more often than it produces biased ones. Only in the last decade did the Supreme Court say peremptory challenges could not be used to exclude jurors on the basis of race. Now it has added sex -- or "gender" as the justices put it. As we read Justice Harry Blackmun's opinion for the court's majority, lawyers and prosecutors will still be able to exercise peremptory challenges -- only much less so, as Justice Connor laments in her concurring opinion.

That doesn't have to lead to miscarriages of justice. A number of states, including Maryland, require non-discrimination on the basis of sex in the use of peremptory challenges in jury selection, and we are unaware of harmful effects from this.

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