The Los Angeles Times reports:

A federal appeals court decided Tuesday that lawyers may not exclude a potential juror solely because he or she is gay, extending a protection once reserved in federal courts for race and gender to sexual orientation.

The unanimous decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals overturned a jury verdict in a federal antitrust trial that involved an AIDS medication because a gay prospective juror was struck.

In this trial, SmithKline Beecham Corporation v. Abbott Laboratories, Abbott used its first peremptory strike during jury selection against the only self-identified gay member of the venire. GSK challenged the strike under Batson v. Kentucky, 476 U.S. 79 (1986), arguing that it was impermissibly made on the basis of sexual orientation. The district judge denied the challenge.

The opinion is an interesting read beyond the substantive holding for it is clear that the trial counsel made some tactical errors in responding to the Batson challenge:

Abbott declined to provide any justification for its strike when offered the opportunity to do so by the district court. After the judge stated that she might reject the Batson challenge on legal grounds that were in fact erroneous, she told Abbott’s counsel that he could adopt those grounds, although she advised him that “it might be the better part of valor” to reveal the basis for his strike. Abbott’s counsel replied that he would rely on the grounds given by the judge and further explained, “I don’t think any of the challenge applies. I have no idea whether he is gay or not.” He later added that he could not have engaged in intentional discrimination because this was only his first strike.

The full 9th Circuit opinion can be found here (login required).