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Friday, June 29, 2012

Of "Victory," Voir Dire . . . and Vacation

This summer I am writing an article that is in part about a 2009 Connecticut decision regarding the scope of voir dire in a same-sex sexual assault case.  As part of that research, I read a well-done student piece by Paul R. Lynd that appeared in 1998 in the UCLA Law Review entitled Juror Sexual Orientation: The Fair Cross-Section Requirement, Privacy, Challenges for Cause, and Peremptories.  Lynd's student work was supervised by Prof. Bill Rubenstein, and it remains a good read more than a dozen years later, describing cases including the Dan White trial. But what I found most thought-provoking was Lynd's argument why, in 1998, it was problematic to ask jurors about their sexual orientation. He explained: "The pressure to conceal gay or lesbian sexual orientation would be particularly strong in states where gay and lesbian sexual conduct remains illegal and in the majority of states where employment discrimination based on sexual orientation remains legal."  Of course, these concerns remain valid in many jurisdictions and contexts today.  Unless I missed something during all the ACA coverage, DOMA remains in force and ENDA has not yet been passed.  On the other hand, since Lynd's article appeared, the SCOTUS decided Lawrence v. Texas.  Six states and the District of Columbia now recognize same-sex marriage.  In fact, just tonight I purchased Linda Hirshman's new book declaring Victory for the gay rights movement.  Reading Lynd's article, I found myself wondering whether courtroom dynamics and jurors' privacy concerns might be changing, at least regionally.  In some states, might increasing numbers of jurors find themselves answering voir dire questions that reveal the gender of their spouse?  And will that process make the whole thing less of a big deal?  Of course, answering direct questions about your sexual orientation under oath, in open court, is different from deciding to announce your [same-sex] wedding in the New York Times.  Russell Robinson has described the dangers of government-enforced outing.  But a world in which such wedding announcements are routine is a changing world.  Has the privacy calculus described by Lynd in 1998 changed too?  And is this part of the "victory" hailed by Hirshman?  At any rate, with that, I am signing off for June.  Toting Hirshman's book, I am heading to New Hampshire to vacation with my fiancee and our children.  I look forward to guest-ing again at prawfs in September, and hope that everyone finds time to relax with their families this summer!

Posted by GiovannaShay on June 29, 2012 at 09:11 PM | Permalink


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