A federal district court in Oakland had ruled that sexual orientation doesn't rise to the same level as race or gender in terms of jurors getting striked off of a panel. The 9th Circuit, which covers California and the western states recently ruled the trial judge in the federal district court was wrong, saying that sexual orientation does rise to the same scope as race and gender, whether it's a criminal case or civil case, says Eugene Hyman, retired Superior Court Judge in Santa Clara, California.
Hyman says that gay activists are happy with this ruling not just because it was decided that gay jurors cannot be removed based solely on sexual orientation but because there's going to be strict scrutiny in terms of marriage cases having to do with various states prohibiting same-sex couples from getting married. In Utah and Oklahoma in recent weeks, federal judges have stricken down laws that prohibit same-sex marriages and Hyman thinks it will be interesting to see if there's going to be litigation in other states that haven't dealt affirmatively with same-sex marriages.
Hyman thinks this will go before the U.S. Supreme Court because of the different rulings between the federal circuits and the 9th circuits and that's usually when the Supreme Court will step in.
In terms of finding out if a juror is gay, Hyman says that the question of whether or not someone is gay cannot be asked directly, however, questions can be posed to a juror regarding their opinion about things related to the case that might lend itself to one's sexual orientation.
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.