Looking Out: Court deciding if sexual orientation can impact jury selection

LGBT-related news and commentary from around the web

  • Openly gay musician Elton John says he feels obligated to go to Russia to support LGBT Russians who are being discriminated against and persecuted.
Openly gay musician Elton John says he feels obligated to go… (Christopher Polk, Getty…)
September 20, 2013|By Michael Gold | The Baltimore Sun

Despite numerous marriage equality-related cases currently making their way through the judicial system, it's somehow the hot-button area of antitrust law where an important LGBT rights issue is taking place.

The Associated Press reported Wednesday that the battle between two dueling pharmaceutical companies over an AIDS drug has sparked a debate over whether gay men and lesbians can be removed from juries due to their sexual orientations.

The case (SmithKline Beecham Corp. v. Abbott Laboratories, if you're looking for the court docs) hinges on whether Abbott Laboratories violated antitrust laws when it dramatically increased the price of HIV drug Norvir. Towleroad legal expert Ari Ezra Waldman has a great explanation of the business-related issues at stake, but basically GlaxoSmithKline is accusing Abbott of forcing its competitors to raise prices of their HIV/AIDS drug cocktails - which utilize Norvir - while Abbott keeps its similar HIV/AIDS treatment at low cost.

Onto the LGBT rights issues: During jury selection for the case, Abbott attorneys removed a gay man from the jury pool using a "peremptory challenge," essentially a no-questions-asked move lawyers use to exclude seemingly-biased people from juries. In the past, courts have ruled that peremptory challenges can't cast jurors aside based on race or gender. Now, Glaxo's lawyers are appealing with the argument that a potential juror can't be excluded from a trial because of sexual orientation either.

Two important things lurk under the surface here. First, Glaxo is implying that Abbott's lawyers worked under the prejudiced assumption that gay men can't be impartial when it comes to a case about AIDS. That's an outdated notion, drawing on '80s and early '90s framing of AIDS as a "gay issue." Abbott refutes Glaxo's interpretation, pointing instead to the rejected juror's knowledge of a drug at stake in the case and the man's loss of a friend to AIDS as the reasons for its dismissal.

The larger issue at stake, though, is whether gay individuals should receive the same level of scrutiny in questions of discrimination as women or racial minorities. If the 9th U.S. Circuit Court of Appeal judges answer in the affirmative, that would have far-reaching effects beyond Abbott, Glaxo and their Big Pharma peers. Laws that discriminate on the basis of sexual orientation would require increased legal attention from all courts - which could be a boon to the marriage equality movement.

Phew. Moving on to simpler (but still weighty) news:

  • The mayor of Porterville, Calif., was removed from office this week by city council, reportedly due to an LGBT Pride declaration she made in June. Can you imagine what they'd have done if she had marched in the parade like Stephanie Rawlings-Blake?

  • A group of more than 60 American legislators are co-sponsoring an Idaho congressman's bill to protect groups that don't recognize same-sex marriage from potential discrimination, the Washington Post reports. The "Marriage and Religious Freedom Act" apparently seeks to prevent the Internal Revenue Service from targeting the tax-exempt status of religious institutions and nonprofits due to their positions on marriage equality. In essence, Rep. Raul Labrador wants no discriminating against discriminators. Sure.

  • The Department of Labor, headed by former Maryland Secretary of Labor Thomas E. Perez, said Wednesday that employers' retirement plans should recognize any marriage "that is legally recognized as a marriage under any state law." Which means same-sex couples who are legally married in a state that recognizes same-sex marriage can claim retirement benefits in any state. Retirement benefits will not, however, apply to couples in civil unions or domestic partnerships - which is relevant, because...

  • Two Wisconsin lawmakers introduced a federal bill that would ensure access to benefits for same-sex couples in civil unions and domestic partnerships. The Washington Blade reports that Sen. Tammy Baldwin wanted to ensure same-sex couples would get benefits regardless of their access to a same-sex marriage.

  • With a rise in anti-gay attitudes in Russia and a troubling law banning "gay propaganda," Sir Elton John says he feels obligated to perform in Moscow. Specifically, the out singer says "as a gay man, I can't leave those people on their own without going over there and supporting them." His approach differs from that of Cher and actor Wentworth Miller, who came out as gay in a letter rejecting an invitation to Russia.

  • Speaking of Russia, Sen. John McCain ripped Vladimir Putin a new one in an op-ed in Pravda that takes the Russian president to task in part for his "bigotry against people whose sexual orientation [Putin and his associates] condemn." Meanwhile, LGBT Americans have yet to see McCain support same-sex marriage.

  • Openly gay actor Matt Bomer is set to play closeted bisexual actor Montgomery Clift in an upcoming biopic.

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