April 19, 2013
Over the past few months, we’ve seen quite a few gender equality topics in our Today in Legal History weekly series.
For example, on January 25, 2013, we had a post on the forty-second anniversary of the Supreme Court’s first Title VII sex discrimination ruling.
On February 15, 2013, we marked the one-hundred thirty-fourth anniversary of female attorneys being allowed to practice before the Supreme Court.
On March 22, we covered the passage of the Equal Rights Amendment (which occurred 41 years earlier); March 29 marked 138 years since the Supreme Court ruled that women have no constitutional right to vote.
Today, we have another anniversary related to gender equality: on April 19, 1994, the Supreme Court ruled in J.E.B. v. Alabama ex rel. T. B.
In J.E.B., the Court held that the state may not use peremptory strikes in jury selection to intentionally discriminate on the basis of gender (peremptory strikes are challenges allowed to each party to remove a juror without having to give a reason).
Interestingly, the individual challenging the state action, J.E.B., was male. The issue came up during a paternity and child support action against him by the state of Alabama.
At trial, the state used nine of its ten peremptory challenges to remove male jurors, leaving a jury entirely composed of females.
J.E.B. challenged this action at the trial court level, arguing that, since the Supreme Court’s 1986 decision Batson v. Kentucky found that the Equal Protection Clause prohibits the state from using its peremptory strikes based solely on race, it also forbids the state from making peremptory strikes based solely on gender.
The trial court rejected this challenge, and, after a trial, the jury found J.E.B. to be the father of the child in question and the trial court ordered him to pay child support.
After the trial court denied his post trial motion, J.E.B. appealed. The appeals court affirmed the trial court, and the Alabama Supreme Court refused to hear the case.
The U.S. Supreme Court, however, granted certiorari, and voted 6 to 3 to reverse.
The Court’s finding mirrored J.E.B.’s argument: that, because of Batson, the Equal Protection Clause of the Fourteenth Amendment barred the use of peremptory challenges to explicitly remove jurors of one sex.
The Court further found that “[d]iscrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process.”
The litigants are harmed “by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings.”
The community is harmed “by the State’s participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders.”
The Court rejected the state’s claim that discrimination based on sex is justified because gender alone is an accurate predictor of a juror’s attitudes (i.e. that male jurors would be more sympathetic to the putative father in a paternity action, and that female jurors would be more hostile). The Court labeled this argument “the very stereotype the law condemns.”
The dissent, written by Justice Scalia and joined by Chief Justice Rehnquist and Justice Thomas, opened with the following statement:
Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors.
That excerpt fairly well sums up Scalia’s primary objections to the majority opinion: that the majority unfairly attacks male chauvinism, and that sometimes (if not most of the time) gender stereotypes are accurate and can be relied upon.
Regardless of whether Justice Scalia’s observations are correct, the majority didn’t see things that way, and legal precedent therefore views things very differently.
And as a result, we have yet another historical legal landmark relating to gender equality.