As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender. To do otherwise would be a violation of Batson and its progeny. At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation.
The federal government may soon follow suit if Congresswoman Susan Davis has her way. She has introduced legislation (Juror Non-Discrimination Act) in the U.S. House of Representatives that will prohibit attorneys from striking potential federal jurors because of their sexual orientation or gender identity. Similar legislation was introduced in the last Congress without success.
According to Congresswoman Davis, “Serving on a jury is one of America’s most cherished civic duties. It is unjust to exclude a particular group of people from participating in civil society because of whom they love or what they look like. The federal government already prohibits juror discrimination on the basis of race, color, religion, sex, national origin, and economic status and as we pursue greater equality for all Americans, I believe LGBT Americans should be also be free from juror discrimination.”
Those in favor of extending Batson to sexual orientation argue that it is necessary and point to instances where attorneys have used peremptory challenges to remove jurors because of their sexual orientation. Recently, a judge in San Diego chastised a prosecutor for using a peremptory challenge to remove a gay juror because of his sexual orientation