Women and Jury Service: A Brief History
The U.S. Constitution guarantees that all federal criminal cases except, impeachment cases, “shall be by Jury.”[1] The Sixth Amendment guarantees criminal defendants “enjoy the right” to an “impartial jury.” On the civil side, the Seventh Amendment guarantees “the right of trial by jury.”[2] The right and obligation to serve on a jury, however, was not always available to women.
In Early America, women were ineligible for jury service. William Blackstone described women as ineligible because “women [suffered] from a ‘defect of sex.’”[3] Judith Sargent Murray, a political playwright in early America, recognized the disparity in equity. Writing to a friend, she recognized that women “cannot legally be tried by [their] Peers, for men are not [their] Peers, and yet upon [men’s] breath [women’s] guilt or innocence depends.”[4]
In 1879, the Supreme Court struck down a West Virginia law that discriminated against African-American’s jury service in Strauder v. West Virginia.[5] Despite the expansion of civic obligations for African Americans, the decision explicitly allowed state laws to restrict jury service “to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications.”[6] Linda K. Kerber, professor of history at the University of Iowa, concludes that Strauder v. West Virginia would be used to justify women’s exclusion and exemption from jury service “[f]or nearly a century.’[7]
Twentieth Century America
With the twentieth century came the ratification of the Nineteenth Amendment and women’s suffrage. The women’s movement and the ratification of the Nineteenth Amendment lent momentum to women’s status in society and “jury service sometimes followed on [the Nineteenth Amendment’s] heels.”[8]
Even in states where women were not excluded from jury service, women were often exempted. In 1947, the Supreme Court upheld women’s exemption from the obligation of jury service in Fay v. New York.[9] Exemption meant that “a woman drawn may serve or not, as she chooses.”[10]
In Fay, the defendant challenged the procedures used to shrink the jury pool from the general to the special panel. Before a potential juror was selected for the special panel, the court would subpoena the person “for personal appearance and [to testify] under oath as to [his or her] qualification and fitness.”[11] Women were not subpoenaed to be examined unless they “[volunteered] or [were] suggested as willing to serve by other women or by other organizations.”[12]
The Court accepted two justifications for women being exempted from jury service. First, the Court noted that “the law of New York gives to women the privilege to serve but does not impose service as a duty.”[13] Second, the Court accepted New York’s justification that it was “impractical to compel large numbers of women, who have an absolute exemption, to come to the clerk’s office for examination since they so generally assert their exemption.”[14]
The Supreme Court again affirmed the woman’s exemption in 1961 in Hoyt v. Florida.[15] Similar to the New York statute, Florida required women to volunteer for jury service in order to serve.[16] The Court found that the exemption was constitutional because “[d]espite 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” and it is not unreasonable for Florida 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.”[17]
Women were not allowed to serve on juries with the same qualifications as men until 1975.[18] In 1975, the Supreme Court held that automatically exempting women unless they act affirmatively violates a defendant’s Sixth Amendment right to an impartial jury “drawn from a fair cross section of the community.”[19] The Court held that “it is no longer tenable to hold that women as a class may be excluded to given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male.”[20]
[1] U.S. Const. art. III § 2.
[2] U.S. Const. amendment VII.
[3] Linda K. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship 130 (New York: Hill and Wang, 1998) (quoting William Blackstone).
[4] Id. at 131 (quoting Judith Sargent Murray).
[5] Strauder v. West Virginia, 100 U.S. 303 (1879).
[7] Kerber, supra note 3, at 133.
[9] Fay v. New York, 332 U.S. 261 (1947); Marissa N. Batt, Just Verdicts? A Prosecutor Extols Jury Service for Women, Ms. Magazine, http://www.msmagazine.com/summer2004/justverdicts.asp (last visited March 5, 2014).
[10] Fay v. New York, 332 U.S. at 267.
[15] Hoyt v. Florida, 368 U.S. 57 (1961).
[18] Taylor v. Louisiana, 419 U.S. 522 (1975).
