when pigs fly … expect the unbelievable

Hoyt v. Florida (1961)

Posted on: May 29, 2009

The issues raised by Hoyt v. Florida (1961) and the subsequent case of Taylor v. Louisiana (1975) was rather volatile in the 60s and 70s.  The question:  Can women serve on juries in America?     The answer:  I think not.  In addition to the state of Florida, this issue was one that was facing many other states in the period.  For example, Mississippi allowed women to be jurors by legislative action (actually “accident”) in 1968.  Senator Jean Muirhead, who truly understood how the legislature worked, added an amendment at the “tail end “ of discussion on a particular statute.  This amendment struck the word “male” from the Mississippi juror qualification statute.  The amendment was passed, generally because no one else in the Senate had picked up on what she was doing.  Flummoxed when he realized what had happened, Senate President George Yarborough held the action over to be reviewed the following day.  The measure passed again, but again, truly by accident.  Other captivating issues were capturing the attention of the Mississippi Senate and House and savvy Senator Muirhead had perfect timing on both days. 

Former Chief Justice Lenore L. Prather, the first woman Mississippi Supreme Court Justice and first woman Mississippi Supreme Court Chief Justice, who served as a City Judge in West Point, Mississippi, her hometown, and as Chancellor in the Fourteenth Chancery District of Mississippi before being appointed to the Court (on the same day that the United States Supreme Court granted Joe Hogan the right to enroll in the “W”) often reminded me that she was a judge before she could serve on a jury.  Had Jean Muirhead not understood legislative workings (she had been a legislative staffer and staff attorney long before she ran for and became a Senator) Mississippi certainly would not have “beaten” Louisiana in the effort to offer women the opportunity to approach civic duty by serving on juries. 

I would argue that the three most compelling civic duties are:  voting, jury service and military service.  American women obtained the vote in 1921; American women were universally “allowed” to serve on juries as a result of Hoyt v. Florida, even though the case condoned an absolute exemption from duty for women at the woman’s option.  Finally, the Women’s Armed Services Integration Act of 1948 ensured women a place in the military services.  Women may volunteer to serve in the armed services of the United States, but they cannot be placed equally in all positions.  However, women are not required to register for conscription in the event of a need for a draft, per Rostker v. Goldberg (1981), the first significant gender-related case rendered by the United States Supreme Court after the Reagan Revolution, affording military duty at a woman’s option.

Society, custom and mores can deal a lethal blow to democracy, even in this most democratic of countries.  Initially, many of the women in the first wave of feminism assumed that the ability to serve on juries came in tandem with voting rights secured by the Nineteenth Amendment (most jury pools came from voter rolls). They soon found that when and if the issue was raised, the outcome was often to preclude women from jury duty.  The reasons cited seemed to be parochial and protective.  Women should not be in the tangle of courthouses, exposed to a criminal element, lurid facts and disgusting situations.  Moreover, women needed to be at home – caring for their children, preparing for the homecoming of their husbands after a hard day of labor.  It was the sort of duality that often shaped arguments which precluded women from various opportunities.                 

 The interesting facet of the Taylor case is the Court’s condoning of the Florida statute which does not “exclude” women but gives a privilege to women to decide whether to serve.  Likewise, the laws in this country up to today do not “exclude” women from military service but give a privilege to women to decide whether to serve.  And of course, voting is always a privilege and one has only to look to voter statistics to determine that many women (and men) having the privilege to register to vote, do not, and having the privilege to vote, do not.  Yet voting, jury duty and military service are not privileges of citizenship but rights of citizenship.  These civic responsibilities – voting, jury duty and military service – were historically treated as rights when associated with African American men.  When extended to white women, they became privileges rather than rights.

What has been slowly extended to women in the 20th century as a privilege was afforded to African American men in the 19th century as a right.  Strauder v. West Virginia, 100 US 303 (1879) declared that the ability to serve on juries was a civic right that was guaranteed to black men by the 15th Amendment and the equal protection clause of the 14th Amendment; to do otherwise would suggest that blacks men were inferior to white men.  Neal  v. Delaware, 103 US 370 (1880) tied electoral status to jury service, as state legislation generally does as well.  This line of reasoning was developed by the Court prior to the passage of the 19th Amendment.  However the reasoning in Strauder and Neal, which could have been applied to civic responsibility of women during the entire 20th century, was largely ignored.  Why?  The nation was forced to take on the protection of the rights of black males in a way very different from the nation’s interest in protecting the rights of women.  Indeed, the majority of legislation passed immediately after the Civil War could be construed to protect the rights not just of black males but of all citizens of the nation.  It was the culture of the 20th century which prohibited women’s vigorous participation in civic responsibility.

Interestingly, when the US Supreme Court finally spoke to women on juries, it was not an application of positive law.  While the Court, in the late 19th century, recognized that African American men’s status as electors implied the political status that brought with it other civic rights and responsibilities, such as the right to serve on juries, the same logic was not applied to women’s search for civic opportunity in the 20th century.  To the contrary, when women found unqualified inclusion in jury service, there was no focus on the woman’s civil and civic right to serve.  Rather, women were included in jury venires as a matter of right because of a defendant’s 6th Amendment right to a jury which reflected a cross-section of the community.  The US Supreme Court has never articulated a woman’s political and civic right to participate in political governance through jury service.

 We cannot ignore that many women chose not to participate in political governance.  Many women sought the “protection” that social custom gave, and were threatened by those women who felt differently.  But the clarity of Justice Douglas’s language in the Ballard case (“the two sexes are not fungible”) points not only to equity and equality but points to the difference that the culture has long understood and acted upon. 

Regardless of whether women were called to serve on juries or those who, if called, chose to serve, those who are acquainted with the legal system understand that a jury pool and a jury venire are quite different animals.  Juries are created by challenges – for cause and peremptory.  Peremptory challenges can be for any reason or no reason – and there is no reason required.  It was in the last decade of the 20th century that the Supreme Court of the United States ruled that peremptory challenges could not be used on the basis of gender – meaning that the use of peremptory challenge could not be used simply to exclude women (or men) from a jury venire.  This “backwards” recognition – that the rights of a defendant demanded the inclusion of American women on juries, rather than any recognition of the rights of women – has insured that women will be on juries in the future.

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