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

Openly gay musician Elton John says he feels obligated to go to Russia to support LGBT Russians who are being discriminated against and persecuted.

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 That's an outdated notion, drawing on '80s and early '90s framing of AIDS as a "gay issue."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:

So, what other news are you talking about this week?