William & Mary Law Review


Anna L. Tayman


On November 27, 1978, Harvey Milk, the first openly gay elected official in California’s history, was murdered. He was shot five times, twice in the head. His murderer, Dan White, was convicted of voluntary manslaughter and served only five years in prison.

The Dan White trial is the most famous example of queer juror exclusion in American history. While White’s defense attorney, Douglas Schmidt, could not directly ask the jurors about their sexual orientation, he had another strategy: find the gays and allies and keep them out, and find the Catholics and keep them in. Schmidt struck a woman who admitted to walking with some of her friends at a gay pride parade; he kept a retired police officer. He struck a young man who said he lived with a male roommate; he kept the churchgoers. He asked everyone: “Have you ever supported controversial causes, like homosexual rights, for instance?” By the end of the jury selection process, the jury was entirely white and heterosexual. And by the end of the trial, Dan White, who lured Harvey Milk into an empty room and shot him twice in the skull, was only convicted of voluntary manslaughter and served a fraction of the time he would have received for a murder conviction. After he was convicted, in a night of protests that became known as the White Night Riots, crowds took to the street chanting, “All-straight jury. No surprise. Dan White lives. And Harvey Milk dies.”

The nation’s queer advocates were stunned. There was a sense that “few judges in America would allow black jurors to be systematically excluded from a jury weighing the murder of the nation’s most prominent black public official.” At the time, of course, there were no such protections for black jurors. Those protections would not properly arise until 1986 with Batson v. Kentucky, and even then, the protections would apply only to racial (and later, gender) classifications. No court would consider protecting queer jurors from peremptory strikes until 2014.

In the past twenty years, scholars have started calling for an expansion of the Batson rule to protect queer jurors. In 2014, the Ninth Circuit became the first to rule that Batson applied in cases of discrimination based on sexual orientation. It based its decision partially on the contemporaneous United States v. Windsor ruling, where the Supreme Court affirmed a Second Circuit decision that relied on the understanding that classifications based on sexual orientation were subject to heightened scrutiny. But while an expansion of the Batson rule is both consistent with Supreme Court precedent and necessary, it is not the only available solution to the problem of bias against queer jurors, nor is it necessarily the best one. This Note calls for a different solution—a rule that goes beyond Batson and addresses both explicit and implicit bias, as well as discriminatory motives obscured by facially neutral excuses.

Part I examines the constitutional and historical basis of the peremptory challenge, the history of exclusion of protected classes from the jury box, and the ruling, reasoning, and practical consequences of Batson. Part II examines Batson’s shortcomings, first looking at evidence of its failure to address racial disparities in juries, then at the issue of less visible class distinctions such as sexuality and gender identity and how those identities complicate the problem of implicit bias and stereotyping. Part III examines Washington’s newly implemented General Rule 37, which goes beyond the Batson rule and limits peremptory strikes based on both explicit and implicit bias, and attempts to ferret out impermissibly discriminatory motives. Part III then explains how such a standard could more effectively govern the discriminatory striking of queer jurors at a national level. Part IV acknowledges the shortcomings of a legislative approach to reforming the peremptory challenge rule and addresses the potential dangers of so limiting the rule.