A Stitch in Haste

A blawger, having recently watched the original 1957 film version of Twelve Angry Men, asks a societal rather than a legal question:

Were all-male juries still the norm in 1957, when the film was released? That seems awfully late, given that the right of women to vote was adopted in 1920. When did it become abnormal?

Since the quest for gay rights invariably draws analogies to and builds upon previous civil rights movements, I grew curious and did a little research.

This is what I came up with:

"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."
--Hoyt v. Florida, 368 U.S. 57 (1961)

"It is untenable to suggest these days that it would be a special hardship for each and every woman to perform jury service or that society cannot spare any women from their present duties."
--Taylor v. Louisiana, 419 U.S. 522 (1975)

So on the one hand, as late as 1961 and beyond, a presumptive bias against women as jurors was not only extant but expressly litigated for by state governments and judicially sanctioned in federal courts.

Why? Just because. "Traditional" juries had, duh, always been all male. Society had long-standing expectations about the roles of men and women (Hoyt: "woman is still regarded as the center of home and family life") — and who were judges to second-guess the reasoned decision-making of legislatures or the "will of the people" who elected them (or, alternatively, the cultural detritus of "tradition")? The fact that such a gender bias was wholly unsubstantiated was irrelevant; the judges just took such biases as self-evident. Stated differently, they adjudicated a basic constitutional question by hunch.

Change is slow.

Then, in a remarkably short fourteen years (roughly the same time as between Bowers v. Hardwick and Lawrence v. Texas), the Supreme Court completely reversed itself: "If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed."

It was, at least in this instance, no longer the prerogative of courts to acquiesce to groundless presumptions about an entire gender or about how all families function. In this context, as in so many others whenever our society and our jurisprudence mature: if you are going to treat an entire class of people differently (and unfairly), then you need a much better reason for doing so than "just because" or "tradition" or "duh."

Change is fast.

Many different analogies between female juror case law and gay marriage litigation could easily be drawn. The one that sticks out in my mind is the rationalization for the discrimination. The traditional rule was couched in terms not of "woman are unsuitable to be jurors" but rather "families need women to stay home." No bigotry, right? Just "concern for the family." And it was of course nonsense then just as it is nonsense today.

For Discussion: Any analogies to be drawn to Don't Ask Don't Tell?