The ACLU has worked over the years to remove barriers to women serving on juries. Under English common law, which was the basis for early American law, women, except in a small category of cases, were deemed unfit to serve on juries under the doctrine of propter defectum sexus, a “defect of sex.”
The Supreme Court, in an 1879 decision, confirmed that a state may constitutionally “confine the selection [of jurors] to males.” Utah, in 1898, became the first state to deem women qualified for jury duty; but as of 1927, only 19 states allowed women to serve. Aside from the “defect of sex,” women were excluded from juries for a variety of reasons: their primary obligation was to their families and children; they should be shielded from hearing the details of criminal cases, particularly those involving sex offenses; they would be too sympathetic to persons accused of crimes; and keeping male and female jurors together during long trials could be injurious to women.
As late as 1961, the Supreme Court, in a unanimous decision, upheld a Florida law automatically exempting women from jury service. According to the court:
Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.
The ACLU, as part of its program to desegregate the judicial system in the South, included claims on behalf of women in cases it brought to stop racial discrimination in jury selection. In one of those cases filed in Georgia in the early 1970s, we challenged state laws that excluded women from serving on juries and allowed them to opt-out of jury duty.
Another challenged law allowed a woman to be excused from jury duty if “she is a housewife with children 14 years of age or younger.” The plaintiffs included three women — Julia Robinson, Nancy Scott, and Gloria M. Brown — who had been excluded because of their gender from jury service in Harris County, Georgia. Harris County attracted national attention after Franklin D. Roosevelt built the Little White House there in 1932 when he came to Warm Springs looking for a cure to his paralysis.
The exclusion of women from juries was challenged both as denying women the equal protection of the law under the 14th Amendment and as denying criminal defendants the right to representative juries drawn from a fair cross section of the community guaranteed by the Sixth Amendment. As the Supreme Court explained: “Community participation in the administration of the criminal law…is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system.”
In response to the litigation, and subsequent decisions of the Supreme Court, the Georgia legislature repealed the provisions of state law that excluded women from serving on juries and that allowed them to opt-out of jury duty. And later, dropping the gender distinction, the state amended the law to allow any “person” who was the primary care giver of a child six years of age or younger to be excused from jury duty.
We have come a long way in shedding the condescending and demeaning characterization of women as unfit for discharging one of the basic functions of citizenship — serving on juries that resolve important issues of public law. And we have helped dismantle the stereotype that only women care for young children at home. We have also helped insure confidence in the fairness of our criminal justice system. Each of these achievements demonstrates how far we have come toward creating a more equal and just society.
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