Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, April 20, 1994                   TAG: 9404200055
SECTION: NATIONAL/INTERNATIONAL                    PAGE: A-2   EDITION: METRO 
SOURCE: Chicago Tribune
DATELINE:                                 LENGTH: Medium

COURT RULES OUT BASING JURY EXCLUSIONS ON GENDER

In a 6-3 decision that denounced "invidious, archaic, and overbroad stereotypes" about the sexes, the court extended rulings that prohibit the use of peremptory challenges to keep minorities from serving on a jury.

"When persons are excluded from participation in our democratic processes solely because of race or gender, [the] promise of equality dims, and the integrity of our judicial system is jeopardized," retiring Justice Harry Blackmun wrote in the majority opinion.

That's because lawyers, by blocking men or women from juries because of their sex, enforce groundless stereotypes, such as the belief that women are more sympathetic to children or that men are tougher on criminals.

Those peremptory challenges therefore violate the equal-protection clause of the 14th Amendment, which guarantees that people in similar situations will be treated the same.

The ruling overturned the verdict of an all-female jury that an Alabama man had fathered a certain child and had to pay child support. Nine men had been removed as potential jurors in the case.

Tuesday's action did not come as a surprise to many observers, but the court went one step further and strongly suggested that it may more closely scrutinize laws that treat men and women differently.

The court has often been more willing to uphold laws that treat the sexes differently than those that treat people differently because of their race. The latter are virtually always struck down, while the court has permitted some gender-driven laws, such as mandatory draft registration for men.

Tuesday's decision is a logical outgrowth of a principle the court first adopted in 1986, in the landmark case Batson vs. Kentucky. That decision prohibited prosecutors from keeping blacks off juries by using peremptory challenges, which allow dismissal of a potential juror without giving a reason.

Before the Batson ruling, prosecutors could use peremptory challenges because, for example, they believed black jurors would be too sympathetic to black defendants. The ruling specifically forbade that justification, saying it was just as illegal as the assumption that blacks were unqualified.

The court has since extended that ruling to include civil trials and to prohibit defense attorneys from doing the same thing. But the federal appellate courts split over whether sex was an appropriate justification to strike a potential juror.

Tuesday's decision was a victory for James Bowen, the Alabama man who challenged the state's use of peremptory challenges to keep nine men off a jury. An all-female jury concluded that Bowen fathered a boy and ordered him to pay $415 a month in support.

The justices sent Bowen's case back to Alabama courts. Either he is to get a new trial, the charge will be dismissed, or state attorneys will have an opportunity to show that the nine men were not dismissed just because they were men.

Alabama officials argued that the decision to strike males from the jury could be based on the perception that they would be more sympathetic to the man's arguments in a paternity case. They did so to ensure fair treatment by the jury, they maintained.

In its opinion, however, the court rejected arguments that the sexual composition of a jury could affect its decisions.

"We shall not accept as a defense to gender-based peremptory challenges the very stereotype the law condemns," Blackmun wrote.

The 14th Amendment prohibits the challenges based on the assumption that a person will be more inclined to decide a certain way "for no other reason than the fact that the person happens to be a woman or happens to be a man."

Justice Antonin Scalia, in a sarcastic dissent, called the opinion an "inspiring demonstration of how thoroughly up-to-date and right-thinking we justices are in matters pertaining to the sexes" and dismissed its reasoning as "largely obscured by anti-male-chauvinist oratory." He was joined by Chief Justice William Rehnquist and Justice Clarence Thomas.

Scalia also stressed the heavy burden the decision places on the entire justice system.