A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco is considering whether to extend to gays and lesbians the same legal protection women and minorities have had since a 1986 U.S. Supreme Court ruling, against exclusion from serving on juries, the San Jose (Calif.) Mercury News reported.
The case involves jury selection in an antitrust confrontation between Abbott Laboratories, based in Illinois, and GlaxoSmithKline, headquartered in London. The pharmaceutical giants are both seeking a new trial to appeal of a mixed verdict delivered two years ago in San Francisco federal court.
The trial involved allegations Abbott raised the cost of a drug important in the treatment of HIV, the virus that causes AIDS -- a move gay rights advocates criticized at the time.
During jury selection for that trial, attorneys for SmithKline argue, attorneys for Abbott rejected a prospective juror after he discussed his partner's employment.
Abbott has denied its lawyers rejected the juror because he was gay.
"The equal protection clause bars using peremptory challenges to disqualify gays and lesbians from jury service," SmithKline attorney Lisa Blatt argued Wednesday. "Sexual orientation, like race and gender, can never be a valid consideration for striking a juror."
Daniel Levin, an attorney for Abbott, argued the court should restrict its interest to antitrust issues and avoid a broader constitutional question.
Judge Marsha Berzon, reacting to an argument that the 1986 U.S. Supreme Court ruling does not yet apply to gays and lesbians, said, "It doesn't feel right."