NCLR, along with Equality California, Lambda Legal, and the law office Durie Tangri, filed a friend of the court brief in this case arguing that it is unconstitutional for attorneys to strike jurors for discriminatory reasons.

In the underlying criminal case, the prosecutor used his peremptory challenges to strike two openly gay men from participating on the jury. When challenged, the prosecutor admitted he did that, in part, out of his belief that openly gay men might be biased against the victim because he was “not out of the closet”—an unsupported stereotype about a subclass of gay people.

NCLR’s amicus brief argued that where a party strikes a prospective juror for an invidious reason, the fact that the party may have also had other, legitimate reasons for the strike is no cure. The California appellate court agreed: “This case is about fairness and equality in our criminal justice system,” and “it is not appropriate to use [a mixed-motive test] when considering the remedy for invidious discrimination in jury selection, which should be free of any bias.”