• Aug 16, 2021

MA Supreme Judicial Court Declares LGBTQ People Must Be Protected from Discrimination in Jury Selection, Reaffirms that Challenges to Discriminatory Strikes on the Basis of Race or Any Protected Class Must be Addressed Individually

For Immediate Release
August 16, 2021

Amanda Johnston | ajohnston@glad.org | 617-417-7769
Tom Warnke | twarnke@lambdalegal.org | 213-841-4503

In its opinion reversing trial court convictions in Commonwealth v. Carter on the basis of the trial judge’s failure to inquire into defense claims of improper racial discrimination during jury selection, the SJC also explicitly articulated for the first time that sexual orientation is a protected class for purposes of a Batson-Soares objection to peremptory challenges

August 16, 2021 (BOSTON, MA) – In a novel ruling with important implications for addressing discrimination on the basis of both race and LGBTQ status in jury selection, the Massachusetts Supreme Judicial Court (SJC) today said explicitly that peremptory challenges based on a prospective juror’s sexual orientation are prohibited by both the Massachusetts and federal constitutions. In its opinion, the SJC also strongly reaffirmed that having some members of a protected class seated on a jury does not alter a trial court’s obligation to require neutral justification for strikes of other members of that class which are challenged as discriminatory.

Black and Pink MA, the Charles Hamilton Houston Institute for Race and Justice, GLBTQ Legal Advocates & Defenders (GLAD), and Lambda Legal filed a friend-of-the-court brief at the Massachusetts Supreme Judicial Court arguing that by failing to examine the prosecution’s peremptory strikes – exclusion of prospective jurors without reason – of four Black jurors and two jurors perceived to be LGBTQ, the trial court denied the defendant access to an impartial jury of his peers and subjected those individual jurors to impermissible discrimination.

While the SJC found that the record did not present sufficient evidence of anti-gay bias in jury selection, both the majority and a concurring opinion asserted firmly that peremptory jury strikes based on the presumed sexual orientation of a juror are prohibited under both the Massachusetts and Federal constitutions.

“This ruling is a win for Black and queer people who too often have the deck stacked against them when interacting with the criminal legal system,” said Michael Cox, executive director at Black and Pink Massachusetts. “Racial- and LGBTQ-status discrimination have no place in jury service or selection.”

“We welcome the SJC’s clear articulation that sexual orientation is protected for the purpose of jury selection for the first time in this opinion, which affirms that LGBTQ people are constitutionally entitled to equal protection under the law,” said Chris Erchull, Staff Attorney at GLBTQ Legal Advocates & Defenders. “Discrimination in jury service against members of any historically marginalized group, including LGBTQ people, is contrary to the very idea of equal citizenship. Today’s ruling is an important step toward the aim of ensuring that prosecutors cannot use bias to exclude LGBTQ jurors or to improperly shape a jury to deny defendants in criminal cases their right to a fair trial.”

“We are grateful the SJC reaffirmed that the presence of members of a protected class on a jury never insulates later strikes from an individual, holistic inquiry into alleged discrimination,” said Katy Naples-Mitchell, Staff Attorney at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. “Today’s ruling directs trial courts to affirmatively weed out discrimination. It is a step toward courtrooms that recognize the full and equal citizenship of all, protecting Black jurors and jurors perceived to be LGBTQ from discrimination based on their identities as well as every defendant’s right to a jury of their peers.”

“We appreciate that the SJC acknowledged specifically that sexual orientation is a protected class and thus not a permitted rationale for striking potential jurors,” said Richard Saenz, Senior Attorney and Criminal Justice and Police Misconduct Strategist at Lambda Legal. “In order to root out anti-LGBTQ bias, it remains imperative that courts hold the line against discrimination against LGBTQ people as potential jurors and equal participants in our system of justice.”


The mission of Black and Pink Massachusetts is to abolish the prison industrial complex and liberate LGBTQ+ people and people living with HIV/AIDS who are affected by that system through advocacy, support, and organizing.

Through strategic litigation, public policy advocacy, and education, GLBTQ Legal Advocates & Defenders works in New England and nationally to create a just society free of discrimination based on gender identity and expression, HIV status, and sexual orientation. www.glad.org

The Charles Hamilton Houston Institute for Race and Justice at Harvard Law School was launched in 2005 by Charles J. Ogletree, Jr., Jesse Climenko Professor of Law. The Institute honors and continues the unfinished work of Charles Hamilton Houston: to ensure that every member of our society enjoys equal access to the opportunities, responsibilities, and privileges of membership in the United States, through a community justice model.

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people, and everyone living with HIV through impact litigation, education, and public policy work.